1. Free Speech and Media Law
International and Comparative Aspects
Paweł Jabłoński
Maciej Pichlak

2. Organizational information
Department of Legal Theory and Philosophy of Law
Paweł Jabłoński:
office hours on Tuesdays, from 8.10 to a.m., room 301, building A
Maciej Pichlak:
Office hours on Fridays, to 13.30, room 302, building A

3. Organizational information
Test: June 7th Questions only from lectures

4. Reference books
- R. Cohen-Almagor, Speech, Media and Ethics. The Limits of Free Expression, Palgrave Macmillan, 2005
Franciszek Longchamps de Bérier, Textbook on the First Amendment: Freedom of Speech and Freedom of Religion, Od.Nowa, 2012
Eric Barendt, Freedom of Speech, Oxford University Press, 2005

5. Three levels of analysis
legal level
sociological level
philosophical level

6. Legal level
What are the international legal acts relating to freedom of expression?
What are the similarities and differences between the protection of freedom of speech in different legal orders?
What are the most famous or most important court judgments on the issue of freedom of expression?

7. Sociological level
What is the actual level of protection of the freedom of speech in various countries?
What are the most relevant controversies about it and cases of its abuse?
Why is the problem of freedom of expression so important to modern societies?
Why are such phenomena as technical progress, globalization, or social differen-tiation important for freedom of expression?

8. Sociological level
“ We are all neighbours now. There are more phones than there are human beings and close to half of humankind has access to the internet. In our cities, we rub shoulders with strangers from every country, culture and faith. The world is not a global village but a global city, a virtual cosmopolis. Most of us can also be publishers now. We can post our thoughts and photos online, where in theory any one of billions of other people might encounter them. Never in human history was there such a chance for freedom of expression as this. And never have the evils of unlimited free expression - death threats, paedophile images, sewage-tides of abuse - flowed so easily across frontiers”.
Timothy Garton Ash, Free Speech. Ten Principles for a Connected World

9. Philosophical level
Which philosophers are important to the issue of freedom of speech?
What types of arguments are there for freedom of speech?
What kinds of reasons are there for restricting this freedom?
Is speaking an action?
What does it mean to be free?
Why freedom of speech is so important for democracy?

10. Philosophical level John Austin, How to do Things with Words?
Paul Ricoeur, Oneself as Another, The Course of Recognition.
Judith Butler, Excitable Speech: A politics of the Performative.

11. „Why Must Speech Be Free?”
Lecture 2
„Why Must Speech Be Free?”

12. Arguments for a Free Speech Principle - introduction
we must distinguish between the defence of freedom of expression as a particular, essential freedom, and the defence of democracy in general
free speech doesn’t entail absolute protection of any manifestation of freedom of expression
two opposing positions on the issue of relationship between philosophical justification and a judicial decision

13. Four types of arguments according to Eric Barendt
Argument from truth
Argument from self-fulfilment
Argument from democracy
Argument from suspicion)

14. Argument from truth
Argument based on the importance of open discussion to the discovery of truth
Truth as a goal and truth as a means
Absolute and relativistic positions

15. Argument from self-fulfilment
Free speech is an integral aspect of each individual’s right to self-development and fulfilment

16. Argument from democracy
We need freedom of expression because it makes the participation of citizens in democracy possible

17. Argument from suspicion
The most important reason for the protection of freedom of expression is a need to protect the public from government abuse

18. Ronald Dworkin: Instrumental and constitutive justifications of free speech
The first treats free speech instrumentally – “that is, not because people have any intrinsic moral right to say what they wish, but because allowing them to do so, will produce good effects for the rest of us”. (R. Dworkin)
“The second kind of justification of free speech supposes that freedom of speech is valuable, not just in virtue of the consequences it has, but because it is an essential and “constitutive” feature of a just political society, that government treat all it adults members, except those who are incompetent, as responsible moral agents” (R. Dworkin)

19. Relation between the instrumental and constitutive justifications of free speech
Both allow exceptions
They are not mutually exclusive
The instrumental justification is both more fragile and more limited

20. Four types of arguments according to Ryszard Sadurski
Search for truth
Individual autonomy
Democracy and self-government
Tolerance

21. Argument fr0m truth – a problem of opinion
„The purpose of seeking the truth supports a distressingly narrow scope for free expression” Opinions, evaluative statements: how to justify them? They cannot be easily falsified, but they also do not directly contribute to truth-seeking.

22. Argument fr0m truth - the "chilling effect"
Protection of solely true statements may lead to a „chilling effect” of self censorship.
A paradox of underprotection (of truth) and overprotection (of false)
A matter of politics, not truth?

23. Argument from truth – a sceptic interpretation
“According to some writers, the search for truth theory is ultimately based on the Millian argument about uncertainty, and on the virtue of scepticism.” Sadurski’s reply: “The "infallibility" stick is too crude a weapon with which to attack the proponents of restraints on speech. If logically extended, it would undermine not only the legitimacy of restrictions on freedom of speech, but also any restrictions on any human freedom, simpliciter”.

24. Argument from autonomy
It’s linked to the argument from self-fulfillment.
Possible objections:
It cannot justify all instances of the excersice of freedom of expression;
It does not allow to distinguish between verbal and nonverbal forms of self fulfillment;
It does not allow to limit the freedom of expression, as long as the latter serves to self fulfillment.

25. Argument from democracy and self-government
The argument of Alexander Meiklejohn: „Democracy requires that citizens be free to receive all information which may affect their choices in the process of collective decision-making and, in particular, in the voting process. After all, the legitimacy of a democratic state is based on the free decisions taken by its citizens regarding all collective action. Consequently, all speech that is related to this collective self-determination by free people must enjoy absolute (or near-absolute) protection.”

26. Argument from democracy and self-government
Objection: “Others have observed that self-government is not necessarily linked to the principle of strong protection of freedom of speech; indeed, one may perhaps argue for restricting free speech on the basis of self-government”.

27. Argument from tolerance
We move a point of argumentation from a speaker to an auditor. Freedom of expression serves here to teach us tolerance towards a variety of existing opinions. Objection: Are there any limits of tolerance? Should we practice tolerance for intolerance (e.g. to hate speech)?